Thursday, November 20, 2014

The following is the text of an analysis offered by the nonpartisan Congressional Research Service in connection with the passage of marijuana legalization in the District.

Would Congressional Inaction on Initiative 71 be Consistent with International Treaty Commitments?

On Election Day, Oregon, Alaska, and the District of Columbia (the District) joined the growing list of states that have legalized marijuana for non-medicinal (or recreational) use. Like referenda approved in 2012 in Colorado and Washington, the Oregon and Alaska initiatives will remove all penalties for the possession of small amounts of marijuana, while establishing a regulatory system that both controls and taxes the cultivation and retail sale of the drug. Unlike the states, the District’s initiative (known as Initiative 71) does not establish a regulatory or taxation system, nor does it create a form of legal commercial supply. The initiative simply makes it lawful to possess small amounts of marijuana, transfer it “without remuneration” to another, or grow a small number of marijuana plants at home. These alterations to state laws do not change the fact that it remains a federal crime, everywhere in the United States, to possess, cultivate, or distribute marijuana.

Questions relating to the legal effect of state level “legalization” and the conflict between state legalization measures and the federal marijuana prohibition have been previously addressed. The Oregon and Alaska laws would appear to raise similar issues, and indeed, one could expect that the federal government’s response to these new laws would likely be consistent with past practice. Federal law enforcement authorities will presumably exercise their discretion to forgo prosecutions and other enforcement actions against individuals acting in compliance with state marijuana laws, so long as the activity does not trigger certain core federal interests.

The District’s legalization measure raises some slightly different questions, especially with respect to the measure’s impact on the United States’ international commitments. The U.S. is a party to three key international drug control conventions, all of which establish specific requirements for the legal treatment of marijuana. The Single Convention on Narcotic Drugs, for example, provides that “parties shall take such legislative and administrative measures as may be necessary…to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.” In addition, the Convention specifically requires parties to “give effect to and carry out the provisions of this Convention within their own territories.” The federal government has implemented these commitments by enacting the Controlled Substances Act, which classifies marijuana as a Schedule I controlled substance (whether it has since strayed from these obligations by adopting a policy of non-enforcement in states that that have adopted legalization laws is a separate question).

In light of the Single Convention’s language, state laws that authorize the possession and sale of marijuana for recreational (or non-medicinal) purposes may put the U.S. in violation of its international commitments. Indeed, the International Narcotics Control Board (Board), the international body established to monitor compliance with the treaty, has asserted that recreational legalization initiatives in the United States, “contravene the provisions of the drug control conventions, which limit the use of cannabis to medical and scientific use only.” The Board has urged the United States to “ensure” that the Single Convention is “fully implemented on the entirety of its territory.” But the Board has few enforcement powers beyond requesting that remedial measures be taken.

Notwithstanding the Board’s position, our federal structure may sometimes give rise to difficulties in fully implementing U.S. treaty commitments, as the federal government’s ability to ensure state action that is consistent with our international commitments is subject to constitutional constraints. As discussed here, the federal government is limited in its ability to stop states like Colorado, Washington, Alaska, and Oregon from removing their own criminal penalties for marijuana (although the federal government arguably has a greater degree of authority to prevent the states from enacting regulatory systems providing for the affirmative licensing of marijuana growers and retailers). A number of courts have held that the Tenth Amendment protects a state’s “power to decide what [under its own laws] is criminal and what is not.” Accordingly, the federal government can neither direct states to enact specific legislation, prevent states from amending or repealing their own laws, nor require state police to enforce federal law against private parties. In limited ways, the Single Convention appears to reflect this principle by stating that the obligation to adopt measures making the cultivation, distribution, or possession of marijuana a “punishable offense” shall be “subject to [each Party’s] constitutional limitations.”

The federal relationship with the District, however, is a completely different story. Congress exercises plenary control over the District, and the District government operates under the authority delegated to it by Congress. Pursuant to the Home Rule Act, legislation enacted by the District is subject to a congressional review period, during which time the federal government may prevent the local legislation from taking effect by enacting a joint resolution of disapproval. Like other changes to D.C. law, Initiative 71 is subject to a review period that begins once the D.C. Council submits the legislation to Congress. There is a clear dichotomy, therefore, between the federal government’s control over the District’s legislative authority and its control over the legislative authority of other states. While the federal government is limited in its ability to prevent states from removing criminal penalties for marijuana under state law, there would appear to be an available “legislative” action that the federal government may take to prevent the District from legalizing marijuana: it may enact a joint resolution of disapproval rejecting Initiative 71 and preventing the measure from taking effect. This line of reasoning suggests that if Initiative 71 is permitted to take effect, this inaction by the federal government may strengthen the Board’s argument that the United States has not fulfilled its commitments under the Single Convention.

Posted at 11/17/2014 09:15 AM by Todd Garvey

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